CAAFlog » Court-Martial News » MAJ Hasan

Last term, in Hasan v. U.S. Army Court of Criminal Appeals, and United States, No. 19-0054/AR (CAAFlog case page), Major Hasan – the Fort Hood shooter and one of four current residents of the military’s death row – asked CAAF to grant him a writ of mandamus ordering all of the judges of the Army CCA to recuse themselves from his case.

The asserted basis for the mass recusal was that the Deputy Judge Advocate General of the Army (DJAG), Major General Risch, who evaluates the Chief Judge of the Army CCA, had previous involvement in the case as the Fort Hood SJA. CAAF heard oral argument on the petition on March 27, 2019, and then summarily denied it six days later, on April 2, ruling:

In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the [All Writs Act].

Two weeks ago Hasan filed two new writ petitions, and yesterday CAAF granted one in part, disqualifying one ACCA judge from the case:

No. 20-0009/AR. Nidal M. Hasan v. ACCA. CCA 20130781. On consideration of the petition for extraordinary relief (recusal of judges), it is ordered that the petition is granted as to Judge Walker and denied as to Judge Brookhart without prejudice to Petitioner’s right to raise the matters asserted in the normal course of appellate review.

No. 20-0010/AR. Nidal M. Hasan v. ACCA. CCA 20130781. On consideration of the petition for extraordinary relief (appointment of a chief judge), it is ordered that the petition is denied without prejudice to Petitioner’s right to raise the matters asserted in the normal course of appellate review.

Last month CAAF heard oral argument on whether to grant a writ of mandamus to Army Major Hasan – who was sentenced to death for 13 specifications of murder and 32 specifications of attempted murder (the #2 Military Justice Story of 2013) – and then CAAF summarily denied the request. Last week CAAF denied a second requested writ:

No. 19-0053/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. Appellate defense counsel petitioned this Court for extraordinary relief in the nature of a writ of mandamus, seeking access to matters that were sealed by the military judge at trial as being privileged between Major Hasan and his standby counsel.[1] In two decisions, the United States Army Court of Criminal Appeals denied appellate defense counsel access to these sealed privileged materials because appellate defense counsel admitted that Major Hasan had not authorized them to review those documents. United States v. Hasan, No. ARMY 20130781 (A. Ct. Crim. App. July 6, 2018) (order); United States v. Hasan, No. ARMY 20130781 (A. Ct. Crim. App. Oct. 16, 2018) (order).

To prevail on a writ of mandamus, the petitioner must show that: “(1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances.” Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012) (citing Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004)). Appellate defense counsel failed to establish (2).

We find unpersuasive appellate defense counsel’s argument that issuance of the writ is clear and indisputable under Rule for Courts-Martial 1103A. Although that rule does not except attorney-client privileged material from its ambit, neither does it include it. On consideration of the petition and the briefs of the parties, as appellate defense counsel failed to establish a clear and indisputable right to the writ it is ordered that the petition is denied.

[1] Although captioned as Hasan v. United States Army Court of Criminal Appeals, it appears that Major Hasan has not authorized this petition, as he has not waived his attorney-client privilege to these materials.

Additionally, on Monday CAAF ordered supplemental briefs in the Army case of United States v. Stout, No. 18-0273/AR (CAAFlog case page):

No. 18-0273/AR. U.S. v. Norman R. Stout. CCA 20120592. On consideration of the briefs of the parties on the issue granted on August 6, 2018, and oral argument held on December 4, 2018, it is ordered that the parties file supplemental briefs on the following additional issues:

I. WHETHER UNITED STATES v. BROWN, 4 C.M.A. 683, 16 C.M.R. 257 (1954), IS NOT CONTROLLING IN THIS CASE BECAUSE THE DECISION PREDATES THE PROMULGATION OF THE APPLICABLE VERSION OF R.C.M. 603(d).

II. WHETHER THE APPLICABLE VERSION OF R.C.M. 603(d) IS CONTRARY TO AND INCONSISTENT WITH THE APPLICABLE VERSION OF ARTICLE 34(c), UCMJ, AND THEREFORE VOID TO THE EXTENT IT PROHIBITS MAJOR CHANGES, BEFORE REFERRAL, TO CHARGES AND SPECIFICATIONS THAT WERE AMENDED TO “CONFORM TO THE SUBSTANCE OF THE EVIDENCE CONTAINED IN THE REPORT OF THE INVESTIGATING OFFICER.” ARTICLE 34(c), UCMJ, 10 U.S.C. § 834(c) (2012).

The briefs of the parties shall be filed concurrently within 15 days of the date of this order.

CAAF originally granted review of one issue questioning whether changes to the time frame of three specifications were proper, and it heard oral argument on December 4, 2018.

On Tuesday, just six days after hearing oral argument, CAAF summarily denied Major Hasan’s petition (CAAFlog case page) for a writ of mandamus ordering the judges of the Army Court of Criminal Appeals to disqualify themselves from his case.

No. 19-0054/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, the briefs of the parties, and oral argument, we note that we have the authority to issue extraordinary writs in aid of our jurisdiction pursuant to the All Writs Act (AWA), 28 U.S.C. § 1651(a) (2012). United States v. Denedo, 556 U.S. 904, 911 (2009). In this death penalty case, we conclude that we have the jurisdiction to issue the requested writ. See In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017) (noting that federal courts of appeals may issue writ under AWA now to protect exercise of its appellate jurisdiction later); see also Article 67(a)(1), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(1) (2012) (providing jurisdiction for this Court over all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death).

However, before we may issue a writ of mandamus, three conditions must be satisfied: (1) the petitioner must demonstrate that there are no other adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for the regular appeals process; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and (3) this Court must be convinced, given the circumstances, that the issuance of the writ is warranted. Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004).

In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the AWA.

Accordingly, it is ordered that the petition is denied without prejudice to Petitioner’s right to raise the issue asserted during the normal course of appellate review.

79 M.J. 29 (C.A.A.F. Apr. 2, 2019) (paragraphing added).

Case Links:
Writ petition
Gov’t Div. Answer
Petitioner’s reply
Blog post: CAAF orders Gov’t Div. to re-brief
Gov’t Div. re-brief
Reply to re-brief
• Oral argument audio (wma)(mp3)
Blog post: Summary disposition

Our #2 story of the year was the court-martial of Major Hasan, the Fort Hood shooter. We ended last year with CAAF granting a petition for extraordinary relief and removing the military judge and ordering a new one be assigned. Col Tara Osburn, USA, was then assigned. Major Hasan’s court-martial was last year’s number two story of 2012.

For all the tragedy of the victims and court-room drama leading up to the trial, the trial itself was relatively uneventful. The defense rested without putting on any evidence. Major Hasan acknowledged he was the shooter at the beginning of the trial. He was convicted of 13 specifications of premeditated murder and 32 specifications of attempted murder. He was sentenced to death after less than two hours of deliberations.

The trial was most notable for Major Hasan’s decision to represent himself. After firing his lawyers, the MJ granted his request to represent himself. His counsel, who continued to be available to assist him, described his actions as a “working towards the death penalty” according to the Washington Post.

I once did extensive research, attempting to look at all Article 118(1) & 118(4) cases preferred since 1984 to identify predictors of convening authorities’ decisions to refer cases capitally and on members awarding death as a punishment. We started with the thought that perhaps there were racial trends we could identify. What we found was the unsurprising conclusion that the number one predictor of capital referrals and capital sentences in Article 118(1) cases was multiple victims. That certainly held true in Major Hasan’s case.

Of course, Major Hasan will receive automatic review from the Army Court of Criminal Appeals. As this CNN report points out, the reversal rate for death-penalty cases in the military on direct review is very high. This report cites a 82% reversal. These numbers are since 1984, when President Reagan implemented R.C.M. 1004.

One issue that lurks in the case highlights some of the paternalism that still lingers in the military-justice system. Major Hasan attempted to plead guilty, but his plea was rejected by the MJ. Article 45(b), UCMJ prohibits a guilty plea to a capital offense. In theory, this denied Major Hasan the mitigating effects of a guilty plea. Is it remotely conceivable that ACCA or CAAF will rule Article 45(b), UCMJ unconstitutional and reverse? Probably not, but if they did, it would probably make our top ten list in future years.

The Art. 32 hearing in the case of an alleged rape at the US Naval Academy involving three former USNA football players has concluded.  WaPo report here.

For all the litigation over grooming n the Hasan court-martial, USDB authorities made the deicison far easier.  In compliance with brig rules they forcibly shaved Hasan, who now sits on the military’s death row.  AP (via Dallas Morning News) report here.

After less than two hours of deliberations, the members sentenced Major Hasan to total forfeitures, a dismissal, and to be put to death. AFP reports:

The forewoman of the jury, a colonel, said the verdict was unanimous that Hasan should be executed.

“It is my duty as president of this jury to inform you that.. the court martial in closed session in a secret ballot of all members concurs to the sentences, to forfeit all pay and allowances, to dismissal from service, to be put to death,” she said.

Hasan, who conducted his own defence during the trial, showed no emotion as the verdict was read.

Here is a report from NBC 5 from Dallas on the Hasan sentencing non-story, and a little more from Stars and Stripes here on the three words he’s said at sentencing.  After much wringing of hands and gnashing of teeth, the prospect of MAJ Nidal Hasan defending himself has turned into more of a suicide by court-martial as ResIpsaLoquitor put it.  Closing argument(s) tomorrow.  H/t Ama

The Hasan sentencing hearing on aggravating and mitigating factors and other evidence got underway yesterday.  CNN (here), Austin americna Statesman (here, with updates from throughout the day), and the Kileen Daily Herald (here, including a complete list of the prosecution witnesses that testified yesterday).

AP via Yahoo News, here, has more on PFC Manning’s desire to become Chelsea Manning while incarcerated.

Sep. 2, 2014, that’s the date for the first capital trial  of a Gitmo detainee reports the Miami Herald here. Abd al Rahim al Nashiri will face charges stemming from the explosion that ripped through the USS COLE in October 2000.  The 9/11 conspirators’ case will begin Sep. 22, 2014 if prosecutors get their requested triaol date–which seems unlikely now that al Nashiri is set for 3 weeks earlier. 

This is an interesting case, Marine accidentally shoots tent mate in Iraq, [severely injures] him, isn’t charged, and gets an honorable discharge.  US Attorney hears about the case,  and files charges for assault and false statements.  The district court judge in the case is perplexed, as am I.  Why is it when the military wants a USAO to prosecute a case its a struggle to get resources, see e.g. Bob Reed and others testimony in 2008 here, but if they get a burr in their . . . .  NYT coverage here.  [My bad on the earlier report, not sure whyI wrote that he killed the guy]  H/t Navy JAG

Preview of the Hasan sentencing phase , here, features NIMJ’s Gene Fidell and Loving counsel Teresa Norris.

The AF is vying for airtime in high profile removals. This one out of missile command resulted froma loss of confidence after several poor inspections of nuke sites. AP via WaPo here.

Here is the WSJ report:

In total, Maj. Hasan was convicted of 13 counts of premeditated murder and 32 counts of attempted premeditated murder.

The trial will next move to a sentencing phase, which will decide whether Maj. Hasan receives a sentence of life in prison or death for his crimes.

More later.  H/t Ama

Judgment Week continues.
Within a week we may have resolution of three of the most high profile courts martial in the last decade.

Another high profile court martial case is awaiting a decision. MAJ Nidal Hasan expedited that process by not making a closing argument and allowing members to begin deliberations after hearing only the trial counsel’s version of events, AP report here and CNN coverage here.

SSGT Robert Bales apologized for his actions Thursday at a sentencing hearing to determine if he will be eligible for parole, LA Times report here. Closing arguments are Friday and deliberations will likely begin today.

AP via WRAL has this summary of the Manning case key elements and next steps.

As PC notes below, coverage of MAJ Hasan resting without presenting any evidence in his own defense is here (LA Times).

Covergae of PFC Mannings sentence to 35 years confinement is here (WaPo).

The Hasan trial rolls on at Ft. Hood. And CNN, here, and others wonder if Hasan is just trying to become a martyr for his “cause” as he sits potted plant like acting as his own attorney in hos court martial. Stars and Stripes coverage of yesterday’s highlights here.

Closing arguments in the PFC Manning sentencing phase wereheld yesterday. Coverage here (WaPo) and here (AP via Military.com). Military judge, Colonel Denise Lind, will now determine Manning’s sentence.

The SSGT Robert Bales contested sentencing hearing gets underway at Joint Base Lewis-McChord this week. Tacoma News-Tribune report here. With the death penalty off the table for the murders of 16 Afghan civilians, and a mandatory life sentence, the only issue for members to decide is life with or without a chance of parole.

PFC Bradley Manning makes an unsworn statement at his sentencing causing the largest ever use of the heart emoticon on Twitter. Coverage here (AP via USA Today) and here (NPR).

The BG Jeffrey Sinclair court has members. Selection was completed last week and a trial start date has been set for Sep. 30. WaPo report here on what we may start calling the Poppa Panda Sexy Pants court-martial. Members selection report here (FayObs).

The Austin American Statesman has this report on yesterday’s proceedings in the MAJ Nidal Hasan court martial. And in possibly one of the oddest rulings you’ll see, apparently prosecutors now can’t read about their own case (this post may even be off limits):

Military judge Col. Tara Osborn will not give prosecutors access to a mental health evaluation that Maj. Nidal Hasan has already released to the media, ruling that Hasan’s mental state has not been introduced as an issue in the ongoing court-martial.

Wednesday morning, Hasan had agreed to release the military sanity board report to prosecutors. Over the last week he has released several pages of the 49-page report to Fox News and the New York Times. Osborn ordered prosecutors not to download available copies from the Internet.

Additonal coverage from the LA Times here.

Lawyers for MAJ Nidal Hasan have asked to take over his defense or diminish their roles because they say their client has a death wish. WaPo reports here on yet another delay in the trial as military judge COL Tara Osborn attempts to sort it out. Here (Tues) and here (Wed) are links to LA Times coverage of some of the testimony in the case so far.

Members’ selection in the BG Jeffrey Sinclair court-martial continues today. FayObs report here. Five members have reportedly been selected so far.

Sentencing continues in the PFC Manning case. Yesterday’s testimony coverage can be found here (Reuters). Military judge COL Denise Lind ruled that some government evidence reltated to the chilling effect on US diplomacy was inadmissible, so she won’t consider it in sentencing, AP (via WaPo) coverage here.

And yet another general is in trouble, or at least was in trouble. See report from WaPo here on the ethical violations committed by the former CG for the Eighth Army in South Korea.